New York Employment Lawyer Blog

A Satisfaction of Judgment was entered recently against AT&T pursuant to a claim of religious discrimination that originated back in July of 2005. AT&T, the United States’ largest provider of telephone, wireless, and internet services, was found to be guilty of religious discrimination when it suspended and subsequently fired two male customer service technicians after the two had attended a Jehovah’s Witnesses convention from July 15 to July 17, 2005.

In October of 2007, a twelve-person jury awarded $756,000 in damages, an award that was upheld on appeal and increased to $1.3 M with interest and front pay. The EEOC (Equal Employment Opportunity Commission), which brought the lawsuit on behalf of the two employees, strongly denounced the action in claiming that the choice between employment and a sincerely held religious belief should never have to be made.

The EEOC also made it clear that if a company chooses to partake in such blatant religious discrimination, that the law will demand there is a high price to pay for such actions from management. Additionally, Judge Leon Holmes of the Eastern District of Arkansas, who presided over the proceedings, also granted an injunction against the communications company prohibiting them from perpetrating any further religious-based employment discrimination.

In United States v. City of New York, Judge Nicholas Garaufis of the Eastern District of New York recently held that the New York City Fire Department’s use of entrance examinations in hiring firefights constituted race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that black and Latino applicants disproportionately failed the exams and those who passed were placed disproportionately lower on the fire department’s hiring lists as a result of their test scores.

The entrance exam in question was used by the city as part of its application process for firefighters from 1999 to 2007, during which time 5,300 entry-level firefighters were hired. During this period, approximately 3,100 applicants were black and 4,200 were Latino, but the City only hired 184 black and 461 Latino firefighters. This was despite the fact that African-Americans and Latinos together represent more than half of the city’s population. For example, in 2002, 25% of the city’s population was black and 27% were Latino. However, African-Americans and Latinos represented only 2.6% and 3.7% of the city’s firefighters respectively. The proportion of minority firefighters in New York City is much smaller than in other large cities.

Based on these statistics, Judge Garaufis held that the plaintiffs made out a prima facie case of disparate impact discrimination. The court also held that the city failed to present sufficient evidence that the exams were justified by legitimate business considerations because the exams were not sufficiently related to the job of a firefighter.

The recent Supreme Court case, Ricci v. DeStafano presented the reverse situation. In that case, the city of New Haven, Connecticut, set aside the results of a examination based on its fear that use of the test results could result in liability for disparate impact discrimination. The Supreme Court held that New Haven did not have a strong basis in evidence that its exams were not job-related and, therefore, its refusal to honor the test results violated Title VII. Judge Garaufis distinguished Ricci by framing the question at issue as whether the plaintiffs had shown that New York’s exams actually had a disparate impact on African-American and Latinos for positions as entry-level firefighters. According to Judge Garaufis, Ricci did not confront the same question. In addition, the court pointed out that the unlike New York, New Haven took greater steps to ensure that its exams tested the relevant knowledge and skills that would reliably predict which applications would best perform in their jobs.

In United States v. City of New York, Judge Nicholas Garaufis of the Eastern District of New York recently held that the New York City Fire Department’s use of entrance examinations in hiring firefights constituted race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that black and Latino applicants disproportionately failed the exams and those who passed were placed disproportionately lower on the fire department’s hiring lists as a result of their test scores.

The entrance exam in question was used by the city as part of its application process for firefighters from 1999 to 2007, during which time 5,300 entry-level firefighters were hired. During this period, approximately 3,100 applicants were black and 4,200 were Latino, but the City only hired 184 black and 461 Latino firefighters. This was despite the fact that African-Americans and Latinos together represent more than half of the city’s population. For example, in 2002, 25% of the city’s population was black and 27% were Latino. However, African-Americans and Latinos represented only 2.6% and 3.7% of the city’s firefighters respectively. The proportion of minority firefighters in New York City is much smaller than in other large cities.

Based on these statistics, Judge Garaufis held that the plaintiffs made out a prima facie case of disparate impact discrimination. The court also held that the city failed to present sufficient evidence that the exams were justified by legitimate business considerations because the exams were not sufficiently related to the job of a firefighter.

The recent Supreme Court case, Ricci v. DeStafano presented the reverse situation. In that case, the city of New Haven, Connecticut, set aside the results of a examination based on its fear that use of the test results could result in liability for disparate impact discrimination. The Supreme Court held that New Haven did not have a strong basis in evidence that its exams were not job-related and, therefore, its refusal to honor the test results violated Title VII. Judge Garaufis distinguished Ricci by framing the question at issue as whether the plaintiffs had shown that New York’s exams actually had a disparate impact on African-American and Latinos for positions as entry-level firefighters. According to Judge Garaufis, Ricci did not confront the same question. In addition, the court pointed out that the unlike New York, New Haven took greater steps to ensure that its exams tested the relevant knowledge and skills that would reliably predict which applications would best perform in their jobs.

In an attempt to end both a 2004 class-action lawsuit and another similar suit filed in 2007, Kodak Co. has finally agreed to pay a $21.4 million settlement to the African-American employees who felt they were unfairly discriminated against because of their race. Plaintiffs involved in this case claimed that they were passed up for promotion opportunities, were not paid the same as their white counterparts, and were subjected to a hostile work environment filled with racist comments.

While the company still refuses to admit their wrongdoing, this agreement will amount to paying a sum of money to 3,021 of their past and current employees. In addition to the money, Kodak will also be held accountable for its ability to promote diversity among supervisors and hire a labor statistician to review the pay and promotion policies. When asked to comment on the recent compromise, Christopher Veronda, Kodak spokesman, said that “[all sides] believe that this settlement represents a resolution of mutual interest.”

Although the settlement was recently granted preliminary approval by a federal judge, a final approval hearing is scheduled in Federal Court in September.

In the midst of a fledgling airline industry, an age-discrimination suit filed against airline manufacturing giant Boeing, has tarnished the image of what was once considered the “friendly” skies.

Former Boeing workers have sued the Chicago-based company and Spirit Aerosystem claiming that they lost their jobs because of their age. The lawsuit was filed by 90 former employees.

Boeing has denied that any of its employment decisions were made based on age, although Boeing has acknowledged that it evaluated the correlation between wages and age brackets.
According to the depositions of former high-level managers, the company officials indicated that Boeing and Spirit considered older workers to be more expensive.

Last month, in a 5-4 decision the Supreme Court ruled that workers bear the burden of proving that age was the key factor, in a demotion or layoff. That changed a long-standing interpretation of the laws, which called for a worker to show that age was just one factor in the employment decision.

In another 5-4 ruling last year, the Supreme Court held that Kentucky’s retirement system does not discriminate against older workers, even though the system deprives employees older than 55 of certain benefits.

Given the recent change in the law, it will be interesting to see how this case will be decided, and what, if any, relief will be granted.

Lynda Sabatelli claims she was discriminated against by LensCrafters after being terminated from her position in a Long Island store. Sabatelli began working at the store in September 2008, only to be diagnosed with breast cancer sometime thereafter.

Sabatelli alleges that once she returned from her double mastectomy surgery, her hours were drastically reduced and she was reassigned to another location. More so, her job title was changed and she received a pay cut. Even more alarming, once Sabatelli’s hair began to change as a result of her medical treatment, she was removed from a position in the public eye and forced to work in a back corner of the store.

LensCrafters fired Sabatelli in March for “unspecified customer complaints,” leaving Sabatelli without any medical benefits. Sabatelli has since filed a lawsuit against LensCrafters, alleging that LensCrafters discriminated against when they changed her job roles and eventually terminated her, in which she hopes to be justly compensated as a result.

The Equal Employment Opportunity Commission (“EEOC”) has begun considering much-needed rules to protect the older members of the workforce. In the last year, the EEOC has seen a 29% increase in age discrimination claims, more than any other employment bias claim. In fact, other than retaliation, age discrimination has become the most common claim in employment related cases. This is much more troubling in light of the recent 5-4 Supreme Court decision in Gross v. FBL Financial Services Inc., where they decided that people bringing suit on an age discrimination claim would be burdened with a higher standard of proof than those bringing suit on the basis of racial or sexual discrimination.

The Gross decision requires that the plaintiff bringing an age discrimination claim prove that age was the key factor in a demotion or layoff. This is in contrast to where previously, one bringing an age discrimination claim only needed to prove that age was a factor, and the burden shifted to the employer to prove the existence of a valid reason for the adverse employment action. Coupled with another recent 5-4 Supreme Court decision - where Kentucky’s retirement system was found to be not guilty of age discrimination despite the removal of certain benefits for employees 55 and older - age discrimination claims seem to be under attack. Fortunately, the EEOC and the AARP have now taken the first step towards remedying this problem.

A representative for New York State Catholic Health Plan brought two claims against her employer. Her first claim was that Fidelis violated the Fair Labor Standards Act (“FLSA”) is not paying their representatives overtime. Her second claim is that she was terminated by Fidelis in retaliation for complaining about Fidelis’ overtime policy.

Since plaintiff and other marketing representatives often worked over forty hours a week, she made numerous complaints to her immediate supervisor that she was not being paid overtime. Plaintiff also complained to other supervisors that these marketing representatives should be paid overtime. After plaintiff made complaints, her immediate supervisor told her that he was “tired of her complaints” and that she was a “pain in the ass”. After being told this, plaintiff intended to raise these issues with the Chief Operating Officer of Fidelis. Subsequently, plaintiff was fired, with defendant alleging that plaintiff refused to follow enrollment regulations.

In the original action, plaintiff brought a retaliation claim under FLSA and under state law, namely Labor Law § 215. The federal retaliation claim was dismissed, while the motion to dismiss the state law claim was denied. At issue in this decision was defendant’s motion for summary judgement for the Labor Law §215 claim. New York Labor Law §215(1) contains a retaliation provision stating “No employer...shall discharge, penalize, or in any other manner discriminate against an employee because such employee has made a complaint to his employer...that employer has violated any provision of [the Labor Law].” In order to make a labor law case, a plaintiff must show that while employed, they made a complaint and the employer took an adverse employment action.

In support of their summary judgment motion, defendant stated that plaintiff never directly complained to the Chief Operating Officer about her overtime compensation and that he had no knowledge of this complaint before her termination. In response, the plaintiff argued that specific knowledge of a complaint is not required, just that there is a general corporate knowledge. Also, a casual connection can be inferred based on a close length of time between an employee’s complaint which is a protected activity and an adverse employment action. Here, there was only a two month window between Plaintiff’s last complaint and her termination. Also, there were no notes included about the defendant’s “investigation” of plaintiff. Because of this, there was an issue of fact to show that Plaintiff’s discharge was motivated, at least partially, by retaliation.

A lawsuit filed in federal court on June 26, 2009 charges the Campbell Soup Company with racial discrimination in that the company routinely promoted less qualified white account executives over its black employees. The class action, filed in Camden, N.J., charges that Campbell Soup Co.’s white managers discriminated in promotions while using a secret method in which job openings were not posted and objective criteria were not used to assess applicants.

The named plaintiff, Chester Hicks, is a fifty-eight year old black man who has worked for Campbell’s in Houston as a territory manager for twenty-four years. The suit alleges that, despite a long history of awards, he has been unable to advance beyond his entry-level job. The class action seeks to represent all black employees holding salaried positions at Campbell’s in the United States after July 7, 2003.

The suit claims that Campbell’s discriminated due to race, as prohibited by Title VII of the Civil Rights Act of 1964 and 42 U.S.C sec, 1981. The suit further alleges that Hicks was denied promotions due to age discrimination in violation of the Age Discrimination in Employment Act (ADEA).

In January 2004, Hicks lodged a complaint with the Equal Employment Opportunity Commission (EEOC). In August 2006, the EEOC determined that there was probable cause that Campbell’s had violated Title VII of the Civil Rights Act of 1964 by failing to promote Hicks due to racial discrimination. The EEOC failed to mediate the matter and issued a right-to-sue letter on April 2, 2009, which gave Hicks 90 days to file suit.

In a recent case, the Utah Supreme Court held that a fired clinic physician could not proceed with an age discrimination suit under the Utah Anti-Discrimination Act (“UADA”) because the clinic from which he was dismissed employed fewer than 15 individuals. Despite the appearance of clear age discrimination as evidenced by the clinic’s president stating he “didn’t know how much longer you older guys wanted to work” and “couldn’t pass up this opportunity to employ a full-time physician,” Utah relied on similar California Supreme Court reasoning in determining that the UADA did not apply to this particular age discrimination case due to the small work force employed by the clinic.

However, many states, including Maryland, Washington, and West Virginia, have decided to interpret their age discrimination and sexual discrimination statutes more broadly. These states have focused on aspects of the law such as Marlyand’s general prohibition of discrimination by any employer or a simple determination that the statute itself creates a clear public policy against any form of discrimination. The Ohio Supreme Court also bypassed the language in their state’s law that only prohibited employment discrimination for employers of four or more persons by finding that the statute did not preempt any public policy based claims of sexual discrimination.

The message here is clear: even if a state statute may attempt limit age discrimination or any other form of employment discrimination to larger employees, state supreme courts have proved willing to overlook these restrictions based on public policy. Furthermore, it seems feasible that, if enough states decide to go down this path, the United States Supreme Court may at some point in time decide that public policy concerns trump the restrictions established by the federal Age Discrimination in Employment Act.

The New York City Human Rights Law, which is Title 8 of the Administrative Code of the City of New York, makes it clear that gender identity is protected under the law, more specifically it is a protected classification under employment discrimination. The purpose of this law is to eliminate employment discrimination based on an individuals “actual or perceived gender.” Under the law “gender” is defined to include: actual or perceived sex; gender identity; self-image; appearance; and, behavior expression, whether or not it is traditionally associated with the legal sex assigned to an individual at birth.

Gender identity is an individual’s perception of whether they are male, female or something else. Gender expression includes external characteristics that are socially defined as being either masculine or feminine. For example, things like, dress, mannerisms, speech patterns, and social interactions.

It is unlawful for an employer, or an employee or agent thereof, to discriminate against any employee based on their actual or perceived gender with regard to recruitment, hiring, firing, promotions, wages, job assignments, training, benefits, and other terms and conditions of employment. Additionally, it is unlawful for an employer, employee or agent thereof, to retaliate against an individual opposed to an unlawful discriminatory practice or made a charge, or because an individual testified, assisted, or participated in an investigation, proceeding or hearing.

In light of widespread layoffs, a significant spike in age discrimination charges, threats to employee benefits, and controversial recent court decisions, the U.S. Equal Employment Opportunity Commission will hold a public hearing Wednesday, July 15, 2009, at 10 a.m. Eastern Time, at 131 M Street, NE, Washington, DC., to discuss age discrimination in employment.

Experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.

In a recent case, Gross v. FBL Financial Services, Inc., the U.S. Supreme Court, in a 5-4 decision, increased the burden of proving age discrimination under the federal Age Discrimination in Employment Act of 1967 (ADEA). Prior to this decision, if a plaintiff could prove that age was a motivating factor in her or his dismissal or demotion, then the burden shifted to the employer to prove that there was a legitimate reason for the employment decision. In Gross, however, the Supreme Court rejected the burden-shifting framework. Instead, plaintiffs will now be required to prove that age was the but-for cause of the adverse employment decision, i.e. that age was the deciding reason. The Court’s decision only applies to age discrimination cases. The burden-shifting framework still applies to claims of discrimination based on race, sex, religion, or national original - which are covered be a different statute.

This decision will make age discrimination claims under the ADEA more difficult to prove. Workers rarely have access to the decision-making process and are not usually told directly that their demotion or dismissal is due to their age. As a result, obtaining evidence that age was the deciding factor in their employer’s decision will usually be very difficult.

Senator Patrick Leahy (D-VT) compared the Court’s decision to its 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., also a 5-4 decision. In that case, the Court held that a woman who had long been paid less than men for the same work could not sue because she had not learned about the discrimination until after the statute of limitations had expired. Congress reversed that decision at the beginning of 2009. It is now up to Congress to reverse another Supreme Court decision that has narrowed federal civil rights protection in the workplace.

A three-judge panel of the Louisiana 1st Circuit Court of Appeals has decided not to grant former University of Louisiana-Lafayette football coach Jerry Baldwin the $2 million verdict he was previously awarded by District Court Judge Don Johnson of Baton Rouge.

Baldwin initially brought suit against his former employer, UL-Lafayette, claiming he was fired from his job as head coach on account of racial discrimination. Baldwin is African American.

In their most recent opinion, the 1st Circuit explicitly cited problems with the lower court’s handling of jury selection as the main reason for dismissing Baldwin’s awarded damages. Specifically, the Circuit Court pointed to District Judge Johnson’s refusal to entertain the Defendant University’s request to dismiss a black juror, who claimed that she had once been the victim of racial discrimination by her white supervisor. The Defendant University’s attorneys attempted to exclude the specific juror, fearing her experiences might unfairly form a bias in favor of Baldwin. The District Judge disagreed, choosing instead to side with the Plaintiffs, who accused the Defendant of attempting to unlawfully exclude the juror purely on racial grounds.

The Circuit Court held that the decision to retain the juror may have had an unfair effect on the ultimate verdict, and decided Baldwin is currently not entitled to his monetary award. Baldwin’s attorneys will attempt to have the Appeals Court reconsider its ruling, and if unsuccessful, may decide to take the case back to trial.

In a lawsuit announced July 6, 2009, the EEOC accused Kmart Corporation of subjecting a 76-year old woman to age discrimination, retaliation and constructive termination.

Age discrimination and retaliation for reporting discriminatory conduct constitute a violation of the Age Discrimination in Employment Act (ADEA). The EEOC alleges Kmart was in violation of the ADEA for failing to investigate and correct the hostile work environment after the woman gave notice of discriminatory conduct against her. The woman alleged that the pharmacy manager accused her of being too old to work, requested that she retire and made derogatory comments on performance evaluations. This conduct in effect forced the woman into resignation.

After failing to successfully reach a settlement, the EEOC brought this suit seeking lost wages and liquidated relief. Federal laws prohibiting employment discrimination are enforced by the EEOC.

In a 5-to-4 decision, the Supreme Court of the United States ruled in favor of the plaintiffs who were suing New Haven, Connecticut in the Ricci v. DeStefano case. A group of seventeen White firefighters and one Hispanic firefighter claimed they were denied the opportunity to be promoted based on their race, after passing the promotional exam only to find that New Haven invalidated the test results because few African American firefighters passed. Although New Haven argued that it acted with the intention of avoiding a potential disparate-impact suit from the minority firefighters who failed to qualify for a promotion, the Supreme Court ruled this act a violation of Title VII of the Civil Rights Act of 1964 intending to prohibit discrimination on the basis of race, color, religion, sex, or national origin. “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority.

This case proved to be highly anticipated because Judge Sonia Sotomayor, President Obama’s nominee to replace Justice David H. Souter, was among the appellate judges on the panel that allowed a lower court ruling to stand. Particularly affecting public employers who use civil service examinations, the ruling announced by the court applies to all employers and many procedures used to assess candidates, as well as to rank current employees with the intention of promotion. This case will likely make it significantly more difficult for employers to disregard hiring and promotional test results once these tests are administered, even if they negatively impact a specific minority group in the future.

Justice Kennedy expressed that the heightened standard will now require that employers in narrow circumstances will have to demonstrate that the test in question is, in fact, irrelevant to the job at hand and present “a strong basis in evidence” that using these results would lead to a loss in a disparate-impact suit in order to consider ignoring further test results.

http://www.nytimes.com/2009/06/30/us/30scotus.html?_r=1&scp=1&sq=firefighters%20supreme%20court%20case&st=cse